Acronyms (colloquial) CERCLA Public law P.L. 96-510 | Nicknames Superfund Statutes at Large 94 Stat. 2767 | |
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Long title An act to provide for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites. Enacted by the 96th United States Congress | ||
Superfund is a United States federal government program designed to fund the cleanup of sites contaminated with hazardous substances and pollutants. It was established as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). It authorizes federal natural resource agencies, primarily the Environmental Protection Agency (EPA), states and Native American tribes to recover natural resource damages caused by hazardous substances, though most states have and most often use their own versions of CERCLA. CERCLA created the Agency for Toxic Substances and Disease Registry (ATSDR). The EPA may identify parties responsible for hazardous substances releases to the environment (polluters) and either compel them to clean up the sites, or it may undertake the cleanup on its own using the Superfund (a trust fund) and costs recovered from polluters by referring to the U.S. Department of Justice.
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Approximately 70 percent of Superfund cleanup activities historically have been paid for by parties responsible (PRPs) for the cleanup of contamination. The exceptions occur when the responsible party either cannot be found or is unable to pay for the cleanup. Until the mid-1990s, most of the funding came from a tax on the petroleum and chemical industries, reflecting the polluter pays principle, but since 2001, most of the funding for cleanups of hazardous waste sites has come from taxpayers. Despite the name, the program has suffered from under-funding, and Superfund cleanups have decreased to a mere 8 in 2014. As a result, the EPA typically negotiates consent orders with PRPs to study sites and develop cleanup alternatives, subject to EPA oversight and approval of all such activities.
The EPA and state agencies use the Hazard Ranking System (HRS) to calculate a site score (ranging from 0 to 100) based on the actual or potential release of hazardous substances from a site. A score of 28.5 places the site on the National Priorities List, making the site eligible for long-term remedial action (i.e., cleanup) under the Superfund program. As of 9 August 2016, there are 1,328 sites listed; an additional 391 have been delisted, and 55 new sites have been proposed.
History
CERCLA was enacted by Congress in 1980 in response to the threat of hazardous waste sites, typified by the Love Canal disaster in New York, and the Valley of the Drums in Kentucky. The initial trust fund to clean up a site where a polluter could not be identified, could not or would not pay (bankruptcy or refusal) consisted of about $1.6 billion.
The EPA published the first Hazard Ranking System (HRS) in 1981, and the first National Priorities List (NPL) in 1982. Implementation during early years, the two terms of the Reagan administration was ineffective, as only 16 of the 799 Superfund sites were cleaned up, and only $40 million of $700 million in recoverable funds from responsible parties were collected. Reagan's policies were described as laissez-faire.
The Superfund Amendments and Reauthorization Act of 1986 (SARA) added minimum cleanup requirements in Section 121, and required that most cleanup agreements with polluters be entered in federal court as a consent decree subject to public comment (section 122); this was to address sweetheart deals between industry and the Reagan-era EPA, that Congress had discovered.
Until the mid-1990s, most of the funding came from a tax on the petroleum and chemical industries, reflecting the polluter pays principle. In 1994, the Clinton administration proposed a new Superfund reform bill, which some environmentalists and industry lobbyists saw as an improvement, but the bill did not get bipartisan support. The newly elected Republican Congress made numerous unsuccessful efforts to significantly weaken the law. The Clinton Administration then adopted some industry favored reforms as policy and blocked most major changes. Even though by 1995 nearly $4 billion in fees were in the superfund, Congress did not reauthorize to collect these and by 2003 the superfund was empty.
According to a 2015 U.S. Government Accountability Office report, since 2001, most of the funding for cleanups of hazardous waste sites has come from taxpayers; a state pays 10 percent of cleanup costs in general and at least 50 percent of it operated the facility responsible for contamination. By 2013 funding had decreased from $2 billion in 1999 to less than $1.1 billion (in constant dollars).
From 2000-2015, Congress allocated about $1.26 billion of general revenue to the Superfund program each year. Consequently, less than half the number of sites were cleaned up from 2001 to 2008, compared to before. The decrease continued during the Obama Administration, and since under the direction of EPA Administrator Gina McCarthy Superfund cleanups decreased even more from 20 in 2009 to a mere 8 in 2014.
Provisions
CERCLA authorizes two kinds of response actions:
- Removal actions. These are typically short-term response actions, where actions may be taken to address releases or threatened releases requiring prompt response. Removal actions are classified as: (1) emergency; (2) time-critical; and (3) non-time critical. Removal responses are generally used to address localized risks such as abandoned drums containing hazardous substances, and contaminated surface soils posing acute risks to human health or the environment.
- Remedial actions. These are usually long-term response actions. Remedial actions seek to permanently and significantly reduce the risks associated with releases or threats of releases of hazardous substances, and are generally larger more expensive actions. They can include measures such as using containment to prevent pollutants from migrating, and combinations of removing, treating, or neutralizing toxic substances. These actions can be conducted with federal funding only at sites listed on the EPA National Priorities List (NPL) in the United States and the territories. Remedial action by responsible parties under consent decrees or unilateral administrative orders with EPA oversight may be performed at both NPL and non-NPL sites, commonly called Superfund Alternative Sites in published EPA guidance and policy documents.
A potentially responsible party (PRP) is a possible polluter who may eventually be held liable under CERCLA for the contamination or misuse of a particular property or resource. Four classes of PRPs may be liable for contamination at a Superfund site:
- the current owner or operator of the site;
- the owner or operator of a site at the time that disposal of a hazardous substance, pollutant or contaminant occurred;
- a person who arranged for the disposal of a hazardous substance, pollutant or contaminant at a site; and
- a person who transported a hazardous substance, pollutant or contaminant to a site, who also has selected that site for the disposal of the hazardous substances, pollutants or contaminants.
The CERCLA also required the revision of the National Oil and Hazardous Substances Pollution Contingency Plan 9605(a)(NCP). The NCP provides guidelines and procedures for responses to releases and threatened releases of hazardous substances, pollutants, or contaminants. The NCP also established the NPL. The NPL, which appears as Appendix B to the NCP, primarily serves as an information and management tool for the EPA. The NPL is updated periodically by federal rulemaking.
The identification of a site for the NPL is intended primarily to guide the EPA in:
Inclusion of a site on the NPL does not itself require PRPs to initiate action to clean up the site, nor does it assign liability to any person. The NPL serves primarily informational purposes, notifying the government and the public of those sites or releases that appear to warrant remedial actions.
The key difference between the authority to address hazardous substances and pollutants or contaminants is that the cleanup of pollutants or contaminants, which are not hazardous substances cannot be compelled by unilateral administrative order.
Despite the name, the Superfund trust fund lacks sufficient funds to clean up even a small number of the sites on the NPL. As a result, the EPA typically negotiates consent orders with PRPs to study sites and develop cleanup alternatives, subject to EPA oversight and approval of all such activities. The EPA then issues a Proposed Plans for remedial action for a site on which it takes public comment, after which it makes a cleanup decision in a Record of Decision (ROD). RODs are typically implemented under consent decrees by PRPs or under unilateral orders if consent cannot be reached. If a party fails to comply with such an order, it may be fined up to $37,500 for each day that non-compliance continues. A party that spends money to clean up a site may sue other PRPs in a contribution action under the CERCLA. CERCLA liability has generally been judicially established as joint and several among PRPs to the government for cleanup costs (i.e., each PRP is hypothetically responsible for all costs subject to contribution), but CERCLA liability is allocable among PRPs in contribution based on comparative fault. An "orphan share" is the share of costs at a Superfund site that is attributable to a PRP that is either unidentifiable or insolvent. The EPA, as a matter of long-standing policy, tries to treat all PRPs equitably and fairly. Budgetary cuts and constraints can make more equitable treatment of PRPs more difficult.
Procedures
Upon notification of a potentially hazardous waste site, the EPA conducts a Preliminary Assessment/Site Inspection (PA/SI), which involves records reviews, interviews, visual inspections, and limited field sampling. Information from the PA/SI is used by the EPA to develop a Hazard Ranking System (HRS) score to determine the CERCLA status of the site. Sites that score high enough to be listed typically proceed to a Remedial Investigation/Feasibility Study (RI/FS). The RI includes an extensive sampling program and risk assessment that defines the nature and extent of the site contamination and risks. The FS is used to develop and evaluate various remediation alternatives. The preferred alternative is presented in a Proposed Plan for public review and comment, followed by a selected alternative in a ROD. The site then enters into a Remedial Design phase and then the Remedial Action phase. Many sites include Long-Term Monitoring. 5-year reviews once the Remedial Action has been completed are required whenever hazardous substances are left onsite above levels safe for unrestricted use.
Implementation
As of 9 August 2016, there are 1,328 sites listed on the National Priority List; an additional 391 have been delisted, and 55 new sites have been proposed.
Approximately 70 percent of Superfund cleanup activities historically have been paid for by parties responsible (PRPs) for the cleanup of contamination. The only time cleanup costs are not borne by the responsible party is when that party either cannot be found or is unable to pay for the cleanup. For those sites, the Superfund law originally paid for toxic waste cleanups through a tax on petroleum and chemical industries. The chemical and petroleum fees were intended to provide incentives to use less toxic substances. Over five years, $1.6 billion was collected, and the tax went to a trust fund for cleaning up abandoned or uncontrolled hazardous waste sites. The last full fiscal year (FY) in which the Department of the Treasury collected the tax was 1995. At the end of FY 1996 the invested trust fund balance was $6.0 billion. This fund was exhausted by the end of FY 2003; since that time funding for superfund sites for which the potentially responsible party (PRP) could not be found has been appropriated by Congress out of general revenues.
Hazard Ranking System
The Hazard Ranking System (HRS) is a scoring system used to evaluate potential relative risks to public health and the environment from releases or threatened releases of hazardous wastes at uncontrolled waste sites. Under the Superfund program, the EPA and state agencies use the HRS to calculate a site score (ranging from 0 to 100) based on the actual or potential release of hazardous substances from a site through air, surface water or groundwater. A score of 28.5 places the site on the National Priorities List, making the site eligible for long-term remedial action (i.e., cleanup) under the Superfund program.
Accessing Superfund data
The data in the Superfund Program are available to the public.